Glen Ashley Thomson v The Automotive Food Metals Engineering Printing and Kindred Industries Union [1995] IRCA 633

CATCHWORDS INDUSTRIAL LAW - REGISTERED ORGANISATION - Construction of union rules - Whether rules impose obligations or restrictions which are oppressive, unreasonable or unjust - Requirement for the holding of a special general meeting as a pre-condition to the conduct of a plebiscite - Participation of union membership in meetings - Use of modern technology to allow union meetings to be held contemporaneously in various locations Industrial Relations Act 1988 ss 3, 187A, 196, 208 Conciliation and Arbitration Act 1904 s140 Doyle v Australian Workers' Union (1986) 12 FCR 197, 205-206 Higgins v Nicol and Others (1971) 18 FLR 343, 357 Lawley & Ors v Transport Workers' Union of Australia (1987) 22 IR 114, 128 Loh v O'Grady and Ors (1992) 42 IR 215, 219 Municipal Officers' Association of Australia v Lancaster and Another (1981) 54 FLR 129, 164-166 Quickenden v Federated Australian University Staff Association & Ors (1990) 33 IR 54, 57 Re Keily; Re Transport Workers Union of Australia and Anor (1992) 42 IR 4, 6-7 Wright and Another v McLeod and Others (1983) 74 FLR 146, 164 No. VI 2884 of 1995 GLEN ASHLEY THOMSON v THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION CORAM: Marshall J PLACE: Melbourne DATE: 1 December 1995

IN THE INDUSTRIAL RELATIONS) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 2884 of 1995 BETWEEN: GLEN ASHLEY THOMSON Applicant AND: THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Respondent CORAM: Marshall J PLACE: Melbourne DATE: 1 December 1995 ORDER THE COURT ORDERS THAT: 1. The rule to show cause granted by Keely J on 12 May 1995 is discharged. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No VI 2884 of 1995 BETWEEN: GLEN ASHLEY THOMSON Applicant AND: THE AUTOMOTIVE, FOOD, METALS ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Respondent CORAM: Marshall J PLACE: Melbourne DATE: 1 December 1995 REASONS FOR JUDGMENT BACKGROUND The matter before the Court is an application under s208 Industrial Relations Act 1988 ("the Act") for orders pursuant to s208(2) of the Act. Section 208 provides that: "208.(1) A member of an organisation may apply to the Court for an order under this section in relation to the organisation. (2) An order under this section may declare that the whole or a part of a rule of an organisation contravenes section 196 or that the rules of an organisation contravene section 196 in a particular respect. (3) An organisation in relation to which an application is made under this section shall be given an opportunity of being heard by the Court. (4) The Court may, without limiting any other power of the Court to adjourn proceedings, adjourn proceedings in relation to an application under this section for such period and on such terms and conditions as it considers appropriate for the purpose of giving the organisation an opportunity to alter its rules. (5) Where an order under this section declares that the whole or a part of a rule contravenes section 196, the rule or that part of the rule, as the case may be, shall be taken to be void from the date of the order. (6) Where: (a) the Court makes an order declaring as mentioned in subsection (2) in relation to the rules of an organisation; and (b) at the expiration of 3 months from the making of the order, the rules of the organisation have not been altered in a manner that, in the opinion of the appropriate authority, brings them into conformity with section 196 in relation to the matters that gave rise to the order; the appropriate authority shall, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine, by instrument, such alterations of the rules as will, in the appropriate authority's opinion, bring them into conformity with that section in relation to those matters. (7) The appropriate authority may, on the application of the organisation made within the period of 3 months referred to in subsection (6) or within any extension of the period, extend, or further extend, the period. (8) Alterations determined under subsection (6) take effect on the date of the instrument. (9) At any time after a proceeding under this section has been instituted, the Court may make such interim orders as it considers appropriate in relation to a matter in relation to which the matters raised in the proceeding are relevant. (10) An order under subsection (9) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned. (11) In this section: "appropriate authority" means: (a) in relation to the eligibility rules of an organisation - a designated Presidential Member; or (b) in relation to the other rules of an organisation - the Industrial Registrar. (12) In this section, a reference to a rule, or the rules, of an organisation includes a reference to a rule, or the rules, of a branch of an organisation." Section 196 of the Act provides as follows: "196 The rules of an organisation: (a) shall not be contrary to, or fail to make a provision required by, this Act or an award, or otherwise be contrary to law; (b) shall not be such as to prevent or hinder members of the organisation from: (i) observing the law or the provisions of an award or an order of the Commission; or (ii) entering into written agreements under an award or an order of the Commission; and (c) shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust." Section 3 of the Act provides that: "3. The principal object of this Act is to provide a framework for the prevention and settlement of industrial disputes which promotes the economic prosperity and welfare of the people of Australia by: (a) encouraging and facilitating the making of agreements, between the parties involved in industrial relations, to determine matters pertaining to the relationship between employers and employees, particularly at the workplace or enterprise level; and (b) providing the means for: (i) establishing and maintaining an effective framework for protecting wages and conditions of employment through awards; and (ii) ensuring that labour standards meet Australia's international obligations; and (c) providing a framework of rights and responsibilities for the parties involved in industrial relations which encourages fair and effective bargaining and ensures that those parties abide by agreements between them; and (d) enabling the Commission to prevent and settle industrial disputes; (i) so far as possible, by conciliation; and (ii) where necessary, by arbitration; and (e) encouraging the organisation of representative bodies of employers and employees and their registration under this Act; and (f) encouraging and facilitating the development of organisations, particularly by reducing the number of organisations in an industry or enterprise; and (g) helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin." Section 187A of the Act provides that: "187A. As well as the objects set out in section 3, this Part has these objects: (a) to encourage the democratic control of organisations; (b) to encourage members of organisations to participate in the organisations' affairs; (c) to encourage the efficient management of organisations; (d) to encourage and help organisations to develop in a way that promotes the economic prosperity and welfare of the people of Australia; (e) to encourage and facilitate the amalgamation of organisations." The respondent is an organisation of employees registered pursuant to the Act. The respondent, for its internal purposes, is constituted, in part, by various divisions, including a "Food and Confectionery Division" ("the Division"). The applicant is a member of the respondent who is attached to the Division. The Division was formed in February 1994 as a consequence of the amalgamation between the respondent (then known as the Metals and Engineering Workers' Union) and an organisation called the Confectionery Workers' and Food Preservers' Union of Australia ("CWFPU"). On 12 May 1995, Keely J granted a rule calling upon the respondent to show cause why the following orders should not be made: "1. That the Rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union") contravene Section 196(a) of the Industrial Relations Act 1988 ("the Act") by failing to provide for the control of committees of the union by the members of the union. 2. Rule 47.9AA of the Rules of the Union contravenes Section 196(c) of the Industrial Relations Act 1988 ("the Act") in that it imposes on members of the Union conditions, obligations or restrictions that, having regard to the objects of the Act and in particular those in Section 3(e) and Section 187A(a) and (b), are oppressive, unreasonable and unjust, in that it denies members any effective or reasonable access to a plebiscite or referendum." Rule 47 of the rules of the respondent was inserted at the time of the amalgamation of the respondent with CWFPU. In that amalgamation the respondent was "the host organisation" or "proposed amalgamated organisation" (see s238 of the Act). Rule 47 (as far as is material) provides as follows: "4. (a) There shall be a Food and Confectionery Division of the Union which shall consist of and to which shall be attached members of the Union in New South Wales, Victoria, Tasmania and South Australia who:- (i) were on the day immediately preceding the relevant date members of the CW&FPU; (ii) are eligible for membership of the Union and who are admitted to membership of the Union pursuant to the provisions of sub- rule 1G of the Rules of the Union; (iii) are officers of the Union and who:- A. were, on the day immediately preceding the relevant date, members of the CW&FPU; or B. were, at the date of becoming officers of the Union, members of the Food and Confectionery Division of the Union; or (iv) were members, other than members attached to the Technical and Supervisory Division or Vehicle Division who were:- A. eligible for membership of the Union pursuant to rules 1A or 1B; and B. employed in the food and confectionery industry, and who were transferred to the Food and Confectionery Division in accordance with paragraph 47.4(b). .... 5. (a) For the purposes of these Rules, the membership of the Food and Confectionery Division shall be divided into the following regions:- (i) the Victorian region covering Victoria, the headquarters of which shall be located in Melbourne; (ii) the New South Wales region covering New South Wales and the Australian Capital Territory, the headquarters of which shall be located in Sydney; (iii) the Tasmanian region covering Tasmania, the headquarters of which shall be located in Hobart; and (iv) the South Australian region covering South Australia, the headquarters of which shall be located in Adelaide; (b) Members of the Food and Confectionery Division shall be members of the region in which they work. 6. (a) There shall be a Food and Confectionery Division Conference which shall consist of:- (i) The Regional President and one delegate from the Victorian Region other than the Regional Secretary - Food and Confectionery Division; (ii) one delegate from the New South Wales Region other than the Regional Secretary - Food and Confectionery Division; (iii) one delegate from the South Australian Region other than the Regional Secretary Food and Confectionery Division; (iv) one delegate from the Tasmanian Region other than the Regional Secretary - Food and Confectionery Division; (v) the Regional Secretary - Food and Confectionery Division of each region; (vi) the Federal Secretary - Food and Confectionery Division; and (aa) Provided that where the Federal Secretary - Food and Confectionery Division also holds the office of Regional Secretary the relevant Regional Council shall elect one of its number as a substitute for the Regional Secretary. .... 7. The Food and Confectionery Division Conference shall, subject to these Rules and decisions of the National Conference, National Council and National Administrative Committee have the management and control of the affairs of the Food and Confectionery Division. 8. (a) Meetings of the Food and Confectionery Division Conference shall be convened and conducted in accordance with this sub-rule. (b) The Food and Confectionery Division Conference shall meet biennially on a date and at a place determined by the Conference or, in the absence of such a determination, by the Federal Executive. (c) The Federal Secretary - Food and Confectionery Division shall give each Regional Secretary - Food and Confectionery Division and each member of the Food and Confectionery Division Conference not less than 3 months notice of the date of the meeting convened in accordance with the previous paragraph. (d) A Region may notify the Federal Secretary - Food and Confectionery Division not later than 2 months before the date of the Food and Confectionery Division Conference of any business which the Region desires to have placed on the agenda of the Food and Confectionery Division Conference. (e) Where a Region has sent to the Federal Secretary - Food and Confectionery Division notice of any business in accordance with the previous paragraph the Federal Secretary - Food and Confectionery Division shall include that business in the agenda. (f) The Federal Secretary - Food and Confectionery Division shall forward to each Regional Secretary - Food and Confectionery Division the agenda for the Food and Confectionery Division Conference not later than one month before the date of the Food and Confectionery Division Conference. (g) The Food and Confectionery Division Conference may determine that business which is not on the agenda may be dealt with by the meeting of the Food and Confectionery Division Conference. (h) On receipt of a request in writing from 2 or more Regions or following a resolution of the Federal Executive, the Federal President - Food and Confectionery Division shall instruct the Federal Secretary - Food and Confectionery Division to call a special meeting of the Federal Conference to be held within 6 weeks of the receipt of the request or the resolution. (i) Each member of the Food and Confectionery Division Conference shall receive a notice in writing at least 14 clear days before the date of the special meeting together with advice as to the business to be dealt with at the special meeting. (j) A. The Federal Executive may, where it considers it desirable and expedient to do so, refer a matter to the Conference in accordance with this paragraph without convening a meeting. B. The Federal Executive may where the matter is urgent, direct that Conference deal with the matter by a postal ballot or a telephone hook up and dispense with or shorten the period of notice required by paragraph 47.8(i). C. Where a matter is to be dealt with by a postal ballot, the Federal Secretary - Food and Confectionery Division shall provide each member of Conference with a notice in writing setting out the matter to be dealt with and a ballot paper on which the member can record his or her vote. D. Each member of the Conference shall record his or her vote on the ballot paper provided, sign the ballot paper and return it to the Federal Secretary - Food and Confectionery Division on or before the date fixed for the conduct of the vote. E. Where a matter is to be dealt with by Conference by telephone hook up the question to be determined may be put to members of the Conference by individual telephone calls, telegrams, telex or any other mode of electronic communication provided that each member of Conference shall confirm his or her vote in writing. F. A decision of a majority of Conference members made in accordance with this paragraph shall have the same effect as a decision made by a meeting. G. The Federal Secretary may act upon a decision of the Conference made in accordance with sub-paragraph E above prior to receiving the confirmation of the Conference members vote in writing. 9. (a) There shall be a Food and Confectionery Division Federal Executive which shall consist of:- (i) the Federal President - Food and Confectionery Division; (ii) the Federal Vice-President - Food and Confectionery Division; (iii) the Federal Secretary - Food and Confectionery Division; (iv) three Executive Members elected by and from the Food and Confectionery Division Conference. (b) The persons referred to in the previous paragraph shall be known as the Food and Confectionery Division Federal Officers. (c) Where one or more of the President, Vice-President or Executive Members is/are unable to attend any meeting of the Food and Confectionery Division Federal Executive, the Regional Council of his/her Region may nominate another member of the Food and Confectionery Division Conference from that Region to attend. (d) The Food and Confectionery Division Federal Executive shall meet at least once every 4 months at such times and places as the Federal President - Food and Confectionery Division and Federal Secretary - Food and Confectionery Division may determine. (e) The Federal Executive shall, when the Food and Confectionery Division Conference is not in session, subject to decisions of the National Conference and National Council, have and may exercise all the powers of the Food and Confectionery Division Conference. (f) The Federal Secretary - Food and Confectionery Division shall at the request of the Federal President or on the receipt of a request from 2 or more regions call a special meeting of the Federal Executive to be held within 14 days of receipt of the request. (g) Each member of the Federal Executive shall receive at least 3 clear days notice in writing of the meeting and of the business to be dealt with at the meeting. (h) A. The Federal President - Food and Confectionery Division and the Federal Secretary - Food and Confectionery Division may, where they consider it desirable and expedient to do so, refer a matter to the Federal Executive in accordance with this paragraph without convening a meeting. B. The Federal President - Food and Confectionery Division and the Federal Secretary - Food and Confectionery Division may, where the matter is urgent, direct that the Federal Executive deal with the matter by a postal ballot or a telephone hook up and dispense with or shorten the period of time required by paragraph 47.9(g). C. Where a matter is to be dealt with by a postal ballot, the Federal Secretary - Food and Confectionery Division shall provide each member of the Federal Executive with a notice in writing setting out the matter to be dealt with and a ballot paper on which the member can record his or her vote. D. Each member of the Federal Executive shall record his or her vote on the ballot paper provided, sign the ballot paper and return to the Federal Secretary - Food and Confectionery Division on or before the date fixed for the conduct of the vote. E. Where a matter is to be dealt with by the Federal Executive by telephone hook up the question to be determined may be put to members of the Federal Executive by individual telephone calls, telegrams, telex or any other mode or electronic communication provided that each member of the Federal Executive shall confirm his or her vote in writing. F. A decision of a majority of Federal Executive members made in accordance with this paragraph shall have the same effect as a decision made by a meeting. G. The Federal Secretary may act upon a decision of the Federal Executive made by telephone hook up in accordance with this paragraph prior to receiving the confirmation of the Federal Executive members vote in writing. 9AA. (a) Any two or more Regions may at special meetings convened for the purpose demand a ballot in accordance with this Sub-Rule of all members of the Food and Confectionery Division of the Union on any question. (b) On a ballot being demanded in writing by the Regional Secretaries of the Regions concerned, the Federal Secretary - Food and Confectionery Division shall, within four weeks, forward to each Region a ballot paper for each person who shall have been a financial member of such Region at the end of the quarter immediately prior to the ballot. (c) The Regional Secretary shall within four weeks distribute and collect the ballot papers and certify the number of members of his/her Region voting, the number of members voting affirmatively and the number of members voting in the negative. (d) Each Regional Secretary shall forthwith forward to the Federal Secretary - Food and Confectionery Division the certificate referred to in paragraph (c) of this Sub-Rule, and the Federal Secretary - Food and Confectionery Division shall thereupon advise each Regional Secretary of the result of the ballot which shall be binding on all members of the Union in the Food and Confectionery Division, the Food and Confectionery Division Executive Committee and Food and Confectionery Division Conference. ... 14. (a) In each region, there shall be constituted a Regional Council which shall consist of:- (i) The Regional President - Food and Confectionery Division; (ii) In the regions other than South Australia two Regional Vice-Presidents - Food and Confectionery Division; (iii) In the South Australian region one Regional Vice President; (iv) The Regional Secretary - Food and Confectionery Division; (v) Regional Assistant Secretary - Food and Confectionery Division, if any; (vi) Such number of State Organisers - Food and Confectionery Division as may be determined by State Council in accordance with Rule 23; and (vii) In the regions other than South Australia 16 Committee members Provided that the number of committee members shall be reduced to no less than 7 committee members or such other greater number of committee members as may be determined from time to time by the Regional Council with the approval of the National Council once the terms of office of the First Committee Members expires; and Should the office of a First Committee Members become vacant because they have resigned their office(s) or have ceased to become eligible to hold that office as committee members the Regional Council may elect not to fill that office. (viii) In the South Australian Region three committee members. (b) The Regional Council shall conduct and manage the business of the - Food and Confectionery Division within the Region. (c) The Regional Council shall meet at least once each year and at such other times as may be necessary or required. (d) Decisions of the Regional Council shall where practicable, be referred to a general meeting of members in the Region for consideration. (e) A quorum for a meeting of the Regional Council shall be one half plus one of the members of the body concerned. (f) (i) A meeting of the Regional Council may be convened by - A. the Regional Executive Committee; B. a meeting of the Regional Council; or C. the Regional Secretary to conduct urgent business. (ii) A meeting of the Regional Council must be convened by the Regional Secretary on receipt of a request from five members of the Regional Council. ... 21. (a) General Meetings of members of the Region in the Food and Confectionery Division shall be held in accordance with this sub-rule. (b) A General Meeting of members may be convened by a General Meeting, the Regional Council or in accordance with paragraph (c). (c) On receipt of a request from 3 members of the Regional Council or from 10% of the financial members of the Region, the Regional Secretary shall call a special general meeting as soon as practicable to deal with the matter which is the subject of the request for the special general meeting. (d) A quorum for a general meeting shall be 10 members. (e) A decision of a general meeting shall be binding on the Regional Council and the Regional Executive. 22. By-laws The Regional council may make, amend or repeal by-laws providing for the conduct of any meeting within the Region." SECTION 196(a) OF THE ACT During the trial of the proceeding (in fact during the applicant's submissions in reply) the applicant's counsel, Mr Borenstein, did not press for an order of the kind referred to in paragraph 1 of the rule to show cause. In other words he conceded that his submission that the rules of the respondent contravened s196(a) of the Act by failing to provide for the control of committees of the Division by members of the respondent attached to the Division could not succeed. Because of this concession, it is not necessary for the Court to determine the question of whether the rules of the respondent contravene s196(a). However, for the sake of completeness, I should indicate that had I been required to determine the issue, I would have found against the applicant's submission. As Gray J said in Loh v O'Grady and Ors (1992) 42 IR 215, 219:- "It is well established that the question whether the requirement that the rules contain provisions as to the control of committees is satisfied is a question which can only be decided by looking at the rules as a whole, to see whether they provide adequately for the subject matter of the statutory provision. Rules such as those dealing with referenda are certainly part of such an examination of the rules. So also are rules dealing with elections and perhaps provisions of other types. It must be emphasised that the question is not whether some particular rule contravenes a provision of the Act, but whether the rules, viewed as a whole, make provision or fail to make provision in accordance with the requirements of the Act. Such a determination can only be arrived at on a review of the rules as a whole. The individual provisions of the rules may continue to be perfectly valid, even if the rules as a whole do fail to make the necessary provision." In my view the rules as a whole do not fail to provide for the control of the relevant committees by the members of the Division. The only basis for the contrary contention prior to the concession was the alleged inadequacy in sub-rule 47.9AA. I do not consider that contention to be soundly based for the reasons identified below.